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MEMORIAL 

ADDRESSED AND PRESENTED 



TO 


THE HON. HUGH McCULLOUGH, 

SECRETARY OP THE TREASURY, 

AND 

THE HON. EDWARD A. ROLLINS, 

COMMISSIONER OF INTERNAL REVENUE. 

Washington. D. C.. 

/ 

Associated gtoeuws’ ^ocietg 

OF 

NEW YORK AND VICINITY. 


/I 

SEPTEMBER. 1867. 

I _;_ - • 

JOHN J. FREEDMAN, 

SO. 25 CHAMBERS STREET. NEW YORK. 

Of Counsel for Petitioners. 


N E W Y O R K : 

I'RINTKD BY .1. W. HELL. 3D PARK ROW. 


1867. 
























MEMORIAL 

ADDRESSED AND PRESENTED 


THE HON. HUGH M c CULLOUGH, 

SECRETARY OF THE TREASURY, 

AND 

THE HON. EDWARD A. ROLLINS, 

COMMISSIONER OF INTERNAL REVENUE, 

Washington, D. C., 


1 Jw 


NEW YORK AND VICINITY. 



SEPTEMBER, 1867. 


JOHN J. FREEMAN, 

NO. 25 CHAMBERS-STREET, NEW YORK, 

Of Counsel for Petitioners. 



A 


NEW YORK; 

PRINTED BY J. W. BELL, 39 PARK ROW. 


1867. 






MEMORIAL 


To the Hon. the SECRETARY of the TREAS¬ 
URY AND THE COMMISSIONER of IN¬ 
TERNAL REVENUE, 

Washington, D. C. 


The undersigned, on behalf of the Lagerbeer Brew¬ 
ers of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 
and 10th Collection District of the State of New York, 
respectfully beg leave to submit the following t 

That in brewing lagerbeer the quantity of water put into 
the kettle is not accurately measured, and from the very 
nature of the manner in which brewers acquire and keep 
up their supply of water, and conduct the same into the 
kettle cannot very easily be accurately measured ; that 
in boiling the malt and hops a great allowance must bo 
made for evaporation, and also for that portion of water 
soaked up by the malt and hops and remaining in them 
after the boiled beer is drawn or pumped off into the 
coolers or cooling apparatus ; that in cooling the beer the 
quantity is reduced by evaporation, and contraction, and 
waste occurring subsequent thereto, in conducting the 
beer into the fermenting tubs; that during the process 
of fermentation and clearing of the beer, there is a con¬ 
stant waste going on in consequence of the impurities 
settling at the bottom, the shrinkage produced by the 
atmosphere, and the shavings or other materials used for 
the purpose of clearing and refining the beer, which 
soaks up a portion of the same ; that in drawing off or 


4 


conducting the beer from the kettle to the coolers, from 
the coolers to the fermenting tubs, from the fermenting 
tubs to the large storage casks, and finally in filling the 
same off into the barrels or kegs, in which the same is 
usually sold, there is a further loss and waste occurring * 
that, therefore, no accurate measurement of lagerbeer 
actually brewed, is or can be taken until the time of sale, 
which in the case of the beer brewed for winter con¬ 
sumption takes place several weeks, and in the case 
of the lagerbeer brewed for the summer season, many 
months after its manufacture. That for the reasons afore¬ 
said, the daily entries and return of a brewer required 
by the Internal Revenue Laws of the United States, to be 
made by him of the packages and number of barrels of 
lagerbeer daily made by him, are, and necessarily must 
be, based upon a mere estimate, according to the brewer’s 
best information and belief of the probable quantity of 
clear and fine beer, which each brewing may yield at 
some future time, and which yield is not always uniform, 
but is materially influenced, and may considerably vary 
according to the quality of the malt and hops used, the 
skill and care on the part of the brewer or his foreman, 
the location and situation of the fermenting chamber 
and vaults and cellars, and the action of the outside at¬ 
mosphere upon the same, and the temperature prevail¬ 
ing therein. 

For lagerbeer differs mostly from other beers, by a 
peculiar process of fermentation, called “ Untergiihrung” 
or fermentation from below, (the nature of which was first 
understood and explained by Professor Liebig,) which 
proceeds very slowly, and removes among other things, 
most of the vegetable albumen from the liquid, the re¬ 
moval of which is very important, because it (vegetable 
albumen) imparts to alcoholic liquor a great disposition to 
chemical change ; it is also peculiar, and differs from all 
other beers, that while they are completely fermented in 
two or three days, and after that time ready for use ; 
lagerbeer brewed for the summer season, undergoes two 
fermentations, the first of which requires two or three 


5 


weeks, and the other two months or longer ; all other beer 
if exposed to air, will turn sour very soon, while good 
lagerbeer may be kept almost unchanged for months, in 
half-full or open vessels. (See introduction to Liebig’s 
Organic Chemistry, or Ure’s Dictionary, vol. l,page 153.) 
For these peculiarities, which impart to lagerbeer a 
nature quite different from other beer,it should be treated 
differently than the general class of beverages called 
malted liquors. The relative quantities of the simple 
constituents of lagerbeer, are not always the same, but 
differ according to the peculiar method of each brewer, 
and the quality and quantity of hops and malt used, 
and the time required for fermentation. The limiting 
quantities of these constituents of lagerbeer, are accord¬ 
ing to Liebig’s Dictionary of Chemistry, vol. 1, p. 770 : 

Alcohol, . . . 2.9 to 5 per cent. 

Solid Substances, . . 4.0 “ 8 “ “ 

Carbonic Acid, . . 0.15 “ 0.18 “ “ 

Water, . . . 88.5 “ 92 “ “ 

That another reason why a brewer of lagerbeer can¬ 
not make daily entries of the exact quantity of lagerbeer 
brewed every day, is, that it is customary, in order to 
produce a more uniform beer throughout the year and 
to equalize all differences in the quality of the malt 
and hops used for different brewings and all differences, as 
far as possible, in the quality of the beer produced, to mi^ 
ten or twelve brewings together : and this is done by 
running a portion of each brewing, whenever the beer so 
brewed has sufficiently advanced in fermentation, from 
the fermenting tubs directly into the large casks or 
packages in which the same is intended to be stored 
away, and by filling them up in the manner indicated, at 
different times by degrees, until they are nearly full, 
without, however, taking an account of the quantity so 
filled in at any one time. That the daily entries and re¬ 
turn of a brewer, however, of his daily sales are based 
upon the quantity of clear and ready made beer actually 
drawn off from the large storage casks into the barrels, 
half-barrels, or kegs, or vessels, in which the same is sold 


6 


or removed from the brewery for consumption or sale. 
That in consequence thereof, the balance of lagerbeer 
actually on hand in a lagerbeer brewery, when accur¬ 
ately measured, will in most cases, be found not to cor¬ 
respond with the number of barrels which, according to 
the entries and returns of lagerbeer made at the time, 
should be on hand ; and that this difference for the 
reasons aforesaid, and aside from all other occurrences in 
a brewery, which very easily may produce a similar 
discrepancy, as for instance, the bursting of large stor 
age casks, the loss of a quantity of lagerbeer in conse 
quence of becoming sour and its subsequent destruction 
an extra large consumption of beer by the hands em¬ 
ployed in a brewery, which generally takes place 
without the knowledge of the proprietor, <fcc., &c., may 
in some cases amolint to a great many hundreds of bar¬ 
rels, notwithstanding the most earnest endeavors of the 
brewer to comply, as far as in his power, with every 
provision of law in respect to the regulation of brewe¬ 
ries ; and that the Internal Revenue Laws of the United 
States, in prescribing these daily entries and returns in 
the manner required of the exact quantity of lagerbeer 
daily made, and the description of the packages in 
which the same is contained, as well as the number of 
barrels made, require, if strictly and literally construed, 
the performance of an impossibility on the part of the 
brewer • that said provisions of the law are, therefore, apt 
to be and in practice are differently construed and in¬ 
sufficiently understood and acted upon by the brewers, 
many of whom have been and still are of the* opinion, 
that no brewer can safely, and in justice to himself as 
well as to the government, set down and enter more 
than about two-thirds of the water put into the kettle 
as the nett product of lagerbeer to be eventually 
derived therefrom. 

That by the laws of France, Baden, Hesse Darmstadt, 
Nassau, <fcc., <fcc., an allowance of 35 per cent, upon the 
quantity of water put into the kettle is made for all 
losses and waste herein before referred to, and that this 
rule is as near correct as it can be made. 


7 


That if a brewer, under the Internal Revenue Laws of 
the United States, enters upon his books more than 65 
per cent, of the amount of water put into his kettle for 
each brewing, his accounts will? in all probability, show a 
large deficiency in the quantity of beer on hand at the 
close of a year ; if he should estimate more than 35 
per cent, for loss and waste, he is liable to have an excess 
of beer on hand after some time. That no uniform rule 
or understanding has ever been adopted by the brewers 
as to how the quantity of beer daily brewed by each of 
them shall be estimated. 

That the foregoing difficulties attending the manufac¬ 
ture of lagerbeer for the past twelve months, have 
been seized by many Revenue officers of the United 
States, as a means to annoy, trouble, and oppress the 
brewers of lagerbeer. Although the tax upon lager¬ 
beer is to be paid only in the manner and at the time 
prescribed by sections fifty-two and fifty-three of 
the Act of July 13th, 1866, namely : by affixing up¬ 
on each and every hogshead, barrel, keg, or receptacle 
in which the same may be contained when sold or re¬ 
moved for sale or consumption, from the brewery or any 
warehouse or place of storage connected therewith, and 
not at any time prior thereto, a stamp denoting the 
amount of tax required upon the lagerbeer contained 
therein in the manner required by said sections; many 
breweries have been complained of, and some of them 
have actually been seized and proceeded against in the 
United States Courts, for the reason that some Special 
Revenue Officer, totally unacquainted with the process 
of manufacturing and storing lagerbeer, saw fit to make 
a secret report to some superior officer, in general lan¬ 
guage, not under oath, and without further proof or 
allegation of particular facts, except that the quantity of 
lagerbeer actually on hand exceeded or fell short by a 
few hundred barrels of the balance of beer which ought 
to be on h&nd according to the entries and returns. In 
many cases these reports were made up in the most 
arbitrary and reckless manner, and were based upon the 


8 


most superficial examination, hearsay, and guesswork, 
by men totally unacquainted with said business ; and in 
some cases they were totally r false. In most instances, in 
counting the beer on hand, no allowance was made for the 
shavings and impurities collected at the bottom of the 
large casks, for difference in size of the large'casks, nor for 
shrinkage produced by natural causes during the process 
of fermentation ; and in some instances the pretended ex¬ 
amination of books and cellars had not taken place at all 
in any manner. No explanation of the existing dis¬ 
crepances is hardly ever accepted from the brewer by 
the officials in New York ; and that the affidavits in the 
case of the United States against Mr. Anton Hupfel, 
now in possession of, and on file in the office of, the Dis¬ 
trict Attorney of the United States for the Southern 
District of New York, Hon. Samuel G. Courtney, copies 
of which are hereunto annexed, marked “ Schedule A/’ 
pretty effectually illustrate the manner in which, as a 
general rule, examinations of the cellars or vaults of a 
brewery have been heretofore conducted. 

In the Tenth Collection District nearly every brewer 
was assessed, in the month of June last, for an alleged 
deficiency in the quantity of beer on hand, upon a secret 
report made to the Assessor of said District by a Reve¬ 
nue Inspector, Colonel Wilbur, without any notice what¬ 
ever to said brewers, and without an opportunity being 
given to the brewers to be heard in their defence : and 
the first notice or information of said assessment re¬ 
ceived by the brewers was the regular notice from the 
Collector of said District that said taxes had been 
assessed against them and placed in his hands for col¬ 
lection ; and said brewers finally found themselves com 
pelled to pay, and, under the advice of counsel, did pay 
the same under written protest, although they were 
totally innocent of the charges made against them in said 
secret report. That a copy of said report is hereunto 
annexed, marked “ Schedule B,” and that the said report 
shows upon its face that it is based entirely upon guess¬ 
work, and not upon an examination of facts, and that the 


9 


parties therein named were complained of', tried, con¬ 
victed, and sentenced, without notice and without being 
given an opportunity to be heard in their defence. In 
the Second District^ the private residence of a son-in-law 
of a brewer, situated at some distance from the brewery, 
was forcibly entered by a Special Revenue Officer during 
the absence of its proprietor at a watering-place, in the 
expectation of finding therein evidence of fraud on the 
part of the father-indaw, but without success. Another 
large brewery was seized for a slight discrepancy in the 
account of stamps bought, and for the further reason 
that on two wagon loads of empty kegs returned by 
eustomers, there was a single keg that had not left a 
piece of the stamp remaining upon it; and although the 
said discrepancy was immediately accounted for, and the 
proper destruction of the stamp, on withdrawal of the 
beer, in the manner prescribed by law, was a matter ovei 
which the brewer could have no control, the seizure 
was maintained for five days, and then only withdrawn 
upon payment of costs. In the city of New York a 
large number of brewers are still threatened with 
prosecutions for the alleged reason of having in the 
month of May last not the exact balance of lagerbeer 
stored away in their vaults, which, according to the 
entries in their books and their returns, they should 
have had, although said charge in many instances is 
totally unfounded ; and in the rest of the cases, even if 
well founded, would not, for the reasons herein before 
stated, be a sufficient ground upon which a seizure could 
be defended and upheld. Other prosecutions are threat¬ 
ened for small irregularities in keeping the book and 
malt accounts, required by law to be kept, and for other 
small technical violations of the letter of the law. 

The undersigned, on behalf of said brewers, further 
beg leave to represent that the brewers of lagerbeer as 
a class, are men of large means and undoubted responsi¬ 
bility, doing business in their own names, and owning a 
great deal of real property necessary for the proper and 
profitable transaction of their peculiar business ; that 
their real estate and other property cannot very well be 


10 


sold or used for any other business, and that, in conse¬ 
quence thereof, they are compelled to do a safe business, 
to avoid all unnecessary risk, and, as a general rule, to 
keep engaged in said business after having once em¬ 
barked therein ; that in the course of said business they 
are, for a period of at least six months in every year, 
compelled to keep on hand and on storage in their 
vaults and cellars, a very large stock of lagerbeer, amount¬ 
ing to a large amount of money; and that for all these 
reasons, their business and property, both real and per¬ 
sonal, in addition to the ample bonds given by them, 
according to law, offer more ample security to the gov¬ 
ernment for the collection of any tax which is imposed, 
or may hereafter be imposed by law, upon the beer man¬ 
ufactured by them, than the business or property of any 
other class of manufacturers. That the tax of one dollar 
per barrel, under these circumstances, can hold out no 
inducement to a brewer of lagerbeer, peculiarly situated 
as he and his property is, to seek to escape payment of 
the same, and the large revenue derived from the brew¬ 
eries of lagerbeer of the first ten Collection Districts of 
New York is in itself the best evidence of the honesty of 
the brewers doing business therein. 

That their business is of such a peculiar nature, that 
an interruption of the regular course of the same, for only 
a few days, may occasion a loss in beer, which becomes 
unsaleable and in customers, the business of all of whom 
is brought to a stand still the moment a brewery is 
seized, amounting to thousands of dollars in a single case ; 
that the machinery employed by the government for the 
enforcement of the Internal Revenue Laws is so compli¬ 
cated, that a seizure of a brewery may be maintained, in 
point of fact for nearly ten days, for the slightest cause 
or for no cause at all, before a brewer can succeed in 
effectuating its release against the will of the seizing 
officers, however innocent he may be and well prepared 
to prove his innocence, and however ably defended by 
counsel; that for these reasons it is cheaper for a brewer, 
whenever a seizure is threatened for the slightest cause 


11 


or no cause at all, to immediately buy his peace for a 
moderate price, than to defend his right and establish 
his innocence by litigation. The seizing officers of the 
government are well aware of this state of facts; and when 
ever a seizure is made, no matter for what cause or un¬ 
der what pretext, it is immediately enforced in the most 
strict and oppressive manner ; no preparations are al¬ 
lowed to be made for supplying only for another day the 
daily route of customers ; not a keg of beer is allowed 
to leave the premises ; the brewer is immediately ad¬ 
vised that it is cheaper to compromise, however unfound¬ 
ed the charge may be, and the seizure is continued and 
the investigation of the alleged charge postponed and 
delayed for a period of time sufficiently long to coerce 
the brewer against his will, and against the advice of 
legal counsel, into some sort of compromise. 

These proceedings have been so frequent, that unless 
they are stopped pretty soon, those brewers who have 
so far paid their full tax, and who deemed it to be their 
interest that every other brewer should be made to pay 
his full tax, will begin to ask themselves the question, 
whether, if they are to be bled any how, there should 
not be a solid reason for it, and whether a combination 
between them and the government officials with a view 
to their mutual benefit, will not be preferable to the 
state of affairs heretofore existing. 

The said brewers hold themselves in readinesss to 
substantiate at the proper time, the allegations contain¬ 
ed in this memorial, and will petition the next Congress 
to investigate the same, and in the meantime beg leave 
to request the Hon. the Secretary of the Treasury and 
the Hon. the Commissioner of Internal Revenue, that 
immediate steps be taken to change this deplorable 
state of affairs ; they respectfully submit, that as long as 
they do substantially comply with every material provis¬ 
ion of the Internal Revenue Acts, they should not be 
permitted any longer to be. persecuted for every small 
irregularity or technical violation of the letter of said 
acts, and their property should no longer be allowed to 


12 


be seized and their entire business interrupted and 
closed without a moment’s notice, at the will of every 
irresponsible Revenue Officer who may choose to make 
a frivolous charge ; and they particularly request the 
Honorable gentlemen named, to prescribe, and adopt, and 
publish the following rules and regulations in the exer¬ 
cise of the large discretionary powers vested in them by 
law, namely : 

(1.) That no brewery shall hereafter be seized and 
closed, except, after an examination duly had before 
some competent and responsible officer upon notice to 
the owner thereof, at which examination he shall have 
the right to meet his accusers, to cross-examine them, 
and to examine witnesses and adduce evidence on his 
own behalf, and at which examination, the facts justify¬ 
ing a seizure shall be clearly proven • that no re-assess¬ 
ment or assessment for any alleged deficiency under 
section 9, of the act of July 13, 1866, shall hereafter be 
made, except after a like examination, duly had upon a 
like notice, at which examination the facts justifying the 
assessment shall be clearly proven ; and that in said 
proceedings a mere technical violation of law or excusa¬ 
ble omission to comply with any provision of law, or an 
alleged surplus or deficiency of beer on hand, shall not 
constitute a sufficient ground of seizure or assessment, as 
long as no actual damage has been sustained by the Uni¬ 
ted States, in consequence thereof. 

The adoption of this suggestion would in no wise en¬ 
able a brewer during the pendency of an examination 
promptly instituted and efficiently conducted, to cover up 
a fraud actually committed or contemplated, or to change 
the status of the beer stored away in his vaults or cel¬ 
lars, for the reason, that the beer kept on hand and on 
storage, with the exception of a small quantity prepared 
for immediate use, is kept in large storage casks or pack¬ 
ages without being bunged up ; that before the same 
will acquire its sparkling nature and other most essential 
qualities, without which it is unfit for sale and utterly 
unsaleable, it must be bunged up and specially prepared 


13 


for sale at, and for a certain period of time, which re¬ 
quires weeks of constant and close attention by men 
skilled in the art, and that whenever a certain quantity 
of beer is prepared and made ready for sale, the same 
must thereupon be speedily removed and sold, or else it 
will become entirely unfit for sale or consumption ; that 
a brewer for these reasons can only prepare a small 
quantity bf his beer for sale at any one time, and the 
balance brewed for particular seasons in the year is 
stored away in large storage casks, of all sizes and 
shapes, in deep cellars or vaults, each of which, after the 
same has been filled up in the winter or spring to its ut¬ 
most capacity, is closed up by mason work, in order to 
keep it sufficiently cool, with only an aperture left in the 
wall sufficiently large for a workman to creep through, 
and which is again closed by a small door. The beer, 
therefore, could not be removed out of time, except by 
tearing down the brick or stone walls separating the dif¬ 
ferent cellars or departments of each cellar from each 
other, and even in such a case, the beer would be en¬ 
tirely unsaleable and worthless. This manner of storing 
away the beer in large casks of all sizes and shapes, 
without measurement of the contents of each cask, and 
in deep vaults and cellars, which have to be hermetically 
closed against the action of the atmosphere by stone and 
brick walls, and access to which is very difficult, render 
an examination of the actual quantity of lagerbeer on 
hand, so difficult and laborious, that the government of¬ 
ficers will seldom, if ever, undertake the labor of a cor¬ 
rect and truthful examination. 

(2.) To recommend to the next Congress of the 
United States, to incorporate the rules and regulations 
so prescribed, adopted, and published, into the body 
of the law, and such changes in the law as will ren¬ 
der the collection of the tax more simple and less 
onerous to the trade, by doing away with all unnec¬ 
essary requirements of the law. Upon the latter point, 
the undersigned will present their views more fully be¬ 
fore the next meeting of Congress. 


14 


(3.) To order a discontinuance of all cases now 
pending in the United Statess Court against brewers 
for alleged violations of the Internal Revenue Laws,, 
in which no actual fraud has been cominitted, or a 
reference of them to the United States District Attor¬ 
neys of their respective Districts, with full power 
to discontinue, if in their judgment after investiga¬ 
tion, they should be of the opinion that the said 
cases are proper cases to be discontinued. 

(4.) To order a suspension of all further proceedings up¬ 
on the complaints made against brewers for an alleged 
surplus or deficiency of beer on hand in all cases not yet 
acted upon, where no fraud upon the Revenue has been 
committed, or a final adjustment of said matters, upon an 
investigation conducted according to the forms of law, 
within a short fixed period of time, before a competent 
officer, upon notice to the parties interested. 

(5.) To order an adjustment of all irregularities in 
the books required by law to be kept, up to the first day 
of September last, and the opening of a new set of books 
from said day. 

In conclusion, and for the purpose of reconciling con¬ 
flicting opinions amongst brewers and Internal Revenue 
Officers, the undersigned beg further leave to inquire 
and to request the written ruling of the Department 
upon the following points : 

(a.) Whether, under section 49 of Act of July 13, 
1866, it is necessary to make daily entries of the number 
of packages and description of packages, as well as the 
number of barrels of beer brewed every day, or whether, 
in view of the impossibility of doing so, it will be deemed 
a substantial compliance if the forms of the * printed 
brewers’ account books are followed, which are issued 
with the sanction of the Department, and do not refer 
to the packages or description of packages: also, 
whether, in calculating and estimating the number of 
barrels of beer brewed daily, the number of barrels of 
beer so calculated and estimated should correspond 


15 


with the number of barrels of water put into the kettle, 
as near as possible, or with the number of barrels of beer 
expected to be realized thereafter from the daily brew¬ 
ings. • * 

(b.) Whether, under section 49 of the Act of Jul} r , 
1866, it is necessary to make daily entries of the quanti¬ 
ties of malt daily used, or whether the insertion of a 
true copy of an entire invoice of malt will be deemed a 
sufficient entry for and during the entire period that it 
may take to exhaust it by brewing beer from it. 

(c.) Whether it is necessary to affix the stamp pre¬ 
scribed by section 53 of the Act of July 13, 1866, to 
every keg of lagerbeer drank by men regularly em¬ 
ployed in a brewery during their work, when the same 
is drank by them in the cellars or vaults connected 
with the brewery, but has not been removed there from, 
without an account being taken of the same, and in pur¬ 
suance of a custom in the trade that all workmen employed 
in a brewery may drink sufficient for their wants, but 
where there is no deduction from their wages on that 
account in any manner. 

We have been informed that in the State of Missouri 
this question has been decided by the U. S. Courts in 
the negative, and we claim and insist that this is the 
true construction of the law, for the greater portion of 
the beer so drank is consumed without knowledge on the 
part of the proprietor of a brewery. 

By order of the Associated Brewers’ Association of 
» New York and vicinity. 

Henry Clausen, Jr., President. 

Charles Rivinius, Vice President. 

Richard Katzenmayer, Secretary. 

Michael Kuntz, Treasurer. 


16 


Schedule A. 


DISTRICT COURT 

OF THE UNITED STATES OF AMERICA, FOR THE 
SOUTHERN DISTRICT OF NEW YORK. 


The United States 
against 

A Quantity of Lagerbeer and cer¬ 
tain Apparatus, Vessels, &c., &c., 
at No. 229 East 38th-STREET, New 
York City. 


Southern District of New York, ss : 

Anton Hupfel, of the City of New York, being duly 
sworn according to law, deposes and says : That he is the 
owner and claimant of the lagerbeer and other property 
described in the information filed for the forfeiture of 
the same,by the United States Attorney, on the 15th day 
of July, 1867 ; that he has duly filed with the clerk of 
this court his answer and claim in opposition to the said 
information filed by the United States Attorney, and that 
ifhe facts set forth and sworn to by deponent in his said 
claim and answer are true of deponent’s own knowledge ? 
and that a copy of deponent’s claim and answer so filed, 
as aforesaid, is hereunto annexed. 

And deponent further says, that on the 8th, 9th, and 
10th days of July, 1867, he was absent from the City, and 
County, and State of New York, on a business visit to 
Allentown, in the State of Pennsylvania ; that during his 
said absence, his lagerbeer and other property at 
No. 229 East 38th-street, in the City of New York, was 




17 


seized by W. Kryzanowski, an Inspector of the United 
States Revenue ; that on his return, and as soon as depo¬ 
nent was informed that said Kryzanowski had made a 
report, that on examination, he, the said Kryzanowski, 
had found that deponent had on hand and on storage 
at his said brewery, at No. 229 East 38th-street, only 
2,683 barrels of lagerbeer, instead of 3,199 barrels, as 
deponent on the day of said examination, to wit: the 
9th day of July, 1867, should have had on hand and 
on storage in accordance with the entries on the books, 
deponent requested several prominent brewers, named 
Michael Kuntz, Jacob Allies, and Frederick Schaefer, 
and a cooper named August Schulz, to take an accurate 
and correct account of the quantity of lagerbeer f on 
hand and on storage at deponent’s said brewery, that 
on the 13th day of July, 1867, the persons named took 
said account, and on said day found 3,168 barrels of 
lagerbeer on hand, in the vaults belonging to depo¬ 
nent’s said brewery ; that the affidavits of said persons 
to this effect are hereunto annexed. 

And deponent further says, that during the first few 
days said W. Kryzanowski had seized deponent’s 
brewery, there were carted away from said brewery, for 
the purpose of supplying deponent’s daily customers, 
and with the knowledge and assent of the officers placed 
in charge of said brewery by said W. Kryzanowski, 38| 
barrels of lagerbeer, which at the time of the seizure 
was filled off into kegs, and which have to be added to 
the 3,168 barrels still on hand on the 13th day of July, 
1867 ; that, therefore, the whole quantity of lagerbeer 
on hand on the 9tli day of July, 1867, upon which day 
said W. Kryzanowski made his alleged examination, 
and which is the date of his report, upon which report 
the seizure has been Continued, amounted to 3,206J 
barrels, instead of 2,683 barrels, as alleged by said W. 
Kryzanowski. 

That for proof as to the manner in which the said 
Kryzanowski made the aforesaid examination, deponent 


18 


begs leave to refer to the affidavits of Adolph Glaser, 
George Sichler, and Jacob Orschler, hereunto annexed. 

And deponent further says, that from the 11th of July 
at noon, until the afternoon of the 15th day of July, 
1867, upon which day the said W. Kryzanowski and the 
officers in charge under him, were relieved by the United 
States Marshal, the said Kryzanowski kept the brewery 
of deponent under strict seizure, and would not permit a 
single keg to be taken out of said brewer} 7 , to the 
great damage of this deponent and his business ; that 
the charge made by said Kryzanowski is utterly with¬ 
out foundation, and that deponent has already been put 
to great trouble and expense in defending himself against 
said unjust charge. 

And deponent further says, that in brewing lagerbeer, 
the quantity of water put into the kettle is never 
accurately measured ; that in boiling, cooling, and fer¬ 
menting and clearing the beer, there is a constant loss 
occurring ; that no subsequent accurate measurement is 
or can be taken until the time of sale, and that in conse¬ 
quence thereof, the return of a brewer of the quantity 
of beer daily made by him, is, and necessarily must be, 
based upon a mere estimate, according to his best infor¬ 
mation and belief ; that the return of a brewer of his 
daily sales, however, is based upon the quantity of clean 
and ready made beer actually drawn off from the large 
standing casks into the kegs or vessels in which the same 
is sold or removed for consumption or sale, and that in 
consequence thereof, the balance of lagerbeer actually 
on hand in the months of June, July, or August, when 
accurately measured, will in many instances, be found 
not to correspond with the number of barrels which ac¬ 
cording to the entries of lagerbeer made at the time, 
should be on hand, and that this difference for the 
reasons aforesaid, and aside from all other occurrences in a 
brewery which very easily may produce a similar discre¬ 
pancy, may in some cases amount to hundreds of barrels, 
notwithstanding the most earnest endeavors of the 


19 


brewer to comply with every provision of law in respect 
to the regulation of breweries; that this difference in 
deponent’s case during a period of ten months, amounted 
to a surplus of only 7^ barrels. 

A. HUPFEL. 


Sworn to before me, this 19th ) 
day of July, 1867, j 

John A. Osborn, 
United States Commissioner . 


DISTRICT COURT 

OP THE UNITED STATES OF AMERICA, FOR THE 
SOUTHERN DISTRICT OF NEW YORK. 

Before Hon. Samuel G-. Blatchford, Judge . 


The United States 
against 

A Quantity of Lagerbeer and cer¬ 
tain Apparatus, Yessels, Utensils, 
AND OTHER PROPERTY, AT 229 EAST 
38th street, New York City. 


The claim and answer of Anton Hupfel, owner and 
claimant of the lagerbeer and other property herein¬ 
after more particularly described to the information of 
the Hon. Samuel 0. Courtney, in behalf of the United 
States, against the said quantities of lagerbeer and 
other property. 

And now comes Anton Hupfel, of the city of New 
York, owner and claimant of the said lagerbeer and 
other property, and for answer to the information of the 
Hon. Samuel G. Courtney, in behalf of the United 






20 


States against the said lagerbeer and other property, 
does allege and propound as follows : 

,j First. That he is the owner of the lagerbeer and cer¬ 
tain apparatus, vessels, utensils, and other property con¬ 
tained in the lagerbeer brewery, No. 229 East 38tli- 
street, in the City of New York, and described and set 
forth in the information filed by the United States At¬ 
torney, for the forfeiture of the same, in the District 
Court of the United States for the Southern District of 
New York, on the 15th day of July, 1867, and that no 
other person is the owner thereof; and that it is true, 
that said lagerbeer and goods and chattels, as in said 
information alleged, were, on or before the 13th day of 
July, 1867, seized by one W. Kryzanowski. 

Second. That it is not true that said lagerbeer, and 
said goods and chattels and other propert} r , or any part 
or portion of the same, became forfeited in manner and 
form, as in the said information in that behalf alleged ; 
and that it is not true, that prior to said seizure, any tax 
or taxes were imposed by any provision of law upon the 
said lagerbeer or any portion thereof; or that the said 
lagerbeer or any portion thereof, was sold or removed 
or deposited or concealed or held by any person or per¬ 
sons, or was about to be sold or removed, or deposited 
or concealed or held by any person or persons in fraud of 
the Internal Revenue Laws of the United States, or any 
provision thereof, or with any design whatever to avoid 
payment of any tax or any portion thereof, to which it 
might be, or become subject. 

Third. That it is true that the said tools, implements, 
instruments, and other property, as alleged in said infor¬ 
mation, were contained in the same place or building 
where the said lagerbeer was seized ; but it is not true 
that the same became liable to be forfeited, in manner 
and form, as in the information in that behalf alleged. , 


Fourth. That it is true that said utensils and vessels 


21 


described in said information, were utensils and vessels 
made nse of for and in the making of said lagerbeer; 
but is not true that the same, prior to said seizure, or at 
any other time, were removed or deposited, or concealed 
with intent to defraud the United States of any tax or 
any part thereof, or that any tax whatever was imposed 
and payable, upon said lagerbeer or any part of the 
same. 

Fifth. This respondent, on the contrary, alleges that 
said lagerbeer, was, and is, contained in large casks, used 
exclusively for the storage of lagerbeer during the hot 
season, and was, and is stored at the usual places and 
vaults used by this respondent for the storage of his 
lagerbeer during the summer months, in his accustomed 
manner, and a manner common to the trade in said 
article ; that no part of said lagerbeer was drawn off 
into hogsheads, barrels, kegs, or other vessels, in which 
lagerbeer is contained, when sold or removed for con¬ 
sumption or sale ; that with the exception of a small 
portion of the same-, the said lagerbeer, at the time of 
the seizure, was not yet fit to be drawn off into smaller 
vessels, for the purpose of sale or removal for consump¬ 
tion or sale, but required a great deal of labor and pre¬ 
paration, before it could be sold or removed for consump¬ 
tion or sale ; that the tax upon lagerbeer is to be paid 
only in the manner and at the time prescribed by sec¬ 
tions 52 and 53, of the act of July 13th, 1866, namely : 
by affixing upon each and every hogshead, barrel,keg, or 
receptacle, in which the same may be contained when 
sold or removed for sale from the brewery or any ware¬ 
house or place of storage connected therewith, and not 
at any time prior thereto, a stamp denoting the amount 
of the tax required upon the lagerbeer contained therein, 
in the manner required by said sections, and this respon¬ 
dent, during his whole course of business since the pas¬ 
sage of said act, has fully, and at all times, complied with 
said provisions ; that he has also made due returns in 
the manner prescribed by law, to the proper officers 
under said act, long before the seizure of said lagerbeer, 


22 


of all lagerbeer brewed and manufactured and sold or 
removed for consumption or sale by him; that the 
lagerbeer seized as herein before specified constitutes the 
balance of beer made by him, and so returned to the 
proper officers, but not vet sold or removed for consump¬ 
tion or sale ; that the quantity of said lagerbeer seized 
corresponds with his returns made, and his entries upon 
the books kept by him, and that upon the returns so 
made, and books kept by him, this respondent, long be¬ 
fore the seizure of said lagerbeer, has made himself 
liable, and always has been ready and willing to pay the 
tax upon said lagerbeer, in the manner and at the time 
prescribed by law. 

Sixth. That all and singular the premises are true. 


Wherefore, this respondent prays that the said lager¬ 
beer, and all other property seized and herein before re¬ 
ferred to, may be restored to him. 

A. HUPFEL. 


Jno. J. Freedman, 

Proctor. 


Southern District of New York, ss : 

On this 19th day of July, in the year 1867, appeared 
personally, Anton Hupfel, the above named respondent, 
and was sworn to the truth of the foregoing claim and 
answer, and deposed and said that he was acquainted 
with the facts set forth in the foregoing claim and 
answer, and that the same is true of his own knowledge. 

A. HUPFEL. 

Sworn to before me, this 19th day ) 
of July, 1867, j 

John A. Osborn, 

United States Commissioner. 



Southern District of New York, ss : 

John Christian Glaser, of said city, being duly 
sworn, says, that he is an adopted son of Anton Hupfel, 
and is the foreman in said Hupfel’s brewery, at No. 229 
East 38th-street, in the City of New York, and that his 
brother Adolph keeps the books and accounts and at¬ 
tends to the outdoor business of said brewery : that de¬ 
ponent has read the affidavit of Anton Hupfel hereto 
annexed, and that the facts therein stated are true of 
deponent’s own knowledge ; and deponent further says, 
that when the Revenue Inspector, W. Kryzanowski, 
first called at said brewery on the 8th day of July, 1867, 
he required deponent to show him the books and the 
cellars; that deponent replied that deponent’s brother 
Adolph kept the books, but he was absent from the 
brewery collecting money, and had the key of the safe 
with him, and that the books were locked up in the 
safe, and that therefore his request to see the books 
could not be complied with at that moment, but would 
be, as soon as Adolph would return ; and that in regard 
to the cellars, deponent had no authority in the absence 
of his father to comply with the said Kryzanowski’s 
request, and did not know how to act, but that if Kr} r - 
zanowski could show that he had a right to make this 
demand he could do as he pleased ; that said Kryzan¬ 
owski thereupon left, and in the afternoon of the same 
day returned and said he had seized the said brewery 
for being refused access to the books and vaults ; that 
deponent’s brother Adolph, who had then just come 
home, offered to open the safe and show all books and 
accounts, but that said Kryzanowski declined to look at 
them for the reason that it was too late, and because he 
had already seized ; that the next morning, deponent, in 
company with John J. Freedman, as counsel for said 
brewery, proceeded to the office of the Metropolitan 
Revenue Board in the City of New York, and then and 
there explained to Colonel Messmore what occurred the 
day before, and said counsel then and there offered to 
show all books and papers and all cellars and vaults, 
and it w r as finally agreed between Colonel Messmore 


24 


and said counsel that said W. Kryzanowski should call 
at the office of said counsel, No. 25 Chambers-street, and 
from there proceed with said counsel to the said brewery, 
and examine into the affairs of said brewery ; that de¬ 
ponent, from there in company of said counsel, pro¬ 
ceeded to the office of said Kryzanowski, and was there 
told by persons in charge of said office, that said Kryzan¬ 
owski would be in in a few minutes ; that said counsel 
then requested said persons so in charge of said office 
to notif}^ said Kryzanowski, as soon as he should come in, 
of the understanding made with Colonel Messmore, and 
that said counsel and deponent would wait at the place 
agreed upon until said Kryzanowski was ready to pro¬ 
ceed to said brewery and commence his examination; 
that said persons promised so to do ; that said Kryzan¬ 
owski, as deponent has since been informed and be¬ 
lieves to be true, shortly thereafter came to his said 
office and received said message, but did not call as re¬ 
quested ; that deponent and said counsel waited several 
hours, and finally proceeded to the brewery alone, when 
they found that said Kryzanowski had been there and 
had made an alleged examination, and had just left, 
leaving, however, two officers behind in charge of said 
brewery. And deponent further says, that "he has since 
learned that said Kryzanowski has made a report to the 
effect that upon an examination he found only 2,683 barrels 
of lagerbeer on hand, and, that according to the books 
kept, there should have been 3,199 barrels on hand on 
the 9th day of July, 1867, and that therefore he found a 
deficiency of 516 barrels ; and deponent further says, 
that said report is untrue, and that the whole quantity 
of lagerbeer on hand on the 9th day of July, 1867, was 
3,206J barrels, as detailed and specified in the affidavit 
of Anton Hupfel and the affidavit of Michael Kuntz, 
Jacob Allies, and August Schulz, hereunto annexed ; 
that deponent was present when the last named persons 
took said account, and knows that the same is correct. 

J. C. GLASER. 


25 


Sworn to before me, this 19th day ) 
of July, 1867. j 

John A. Osborn, 

U. S. Commissioner . 


Southern District of New York, ss : 

Adolph Glaser, of said city, being duly sworn, says, 
that he is an adopted son of Anton Hupfel, and has 
charge of and keeps the books and accounts and attends 
to the outdoor business of HupfeFs brewery ; that de¬ 
ponent has read the affidavit of said Anton Hupfel, 
hereto annexed, and that the facts therein stated are 
true to deponent’s own knowledge; and deponent further 
says, that on the 8th day of July, 1867, deponent left the 
said brewery early in the morning, and was engaged 
nearly all day outside in making collections ; that during 
that time the books and papers in the office were locked 
up in the safe, and deponent had the key to said safe 
with him; that when deponent returned in the after¬ 
noon and saw W. Kryzanowski, this deponent, upon 
being informed of the object of said Kryzanowski’s 
visit, immediately offered to show all books and papers, 
etc., etc., which offer was declined by said Kryzanowski 
upon the ground of being too late, as he already had 
made a seizure for having been refused access ; that de¬ 
ponent upon the following day stayed at the brewery 
and held himself in readiness to show said books, 
papers, etc., etc. ; that at about noon on that day said 
Kryzanowski came in, and in a hurried manner looked 
over said books and papers, and made some extracts 
therefrom; that he then went into the cellars accompanied 
by deponent and another man whom said Kryzanowski 
had brought along, and commenced to inspect the lager- 
beer there stored; that deponent and said Kryzan¬ 
owski did not, however, enter all the cellars, some of 
which were so completely filled with large casks that 
an entrance could be effected only by creeping through 



26 


a small opening ; that access to all the casks was very 
difficult and that it was so dark that objects could not 
readily be distinguished ; that for the purpose of getting 
at an estimate of the probable quantity of lagerbeer on 
hand, the services of two hands employed at said 
brewery were brought into requisition, and these two 
men, together with Kryzanowski’s agent, proceeded 
with the examination, and being called upon to do so, 
these two hands gave to Kryzanowski’s agent a state¬ 
ment of the probable number of casks and the probable 
contents of the same, according to the best opinion they 
could form under the circumstances and in the manner 
they had to proceed, namely, by merely guessing at it 
as near as they could ; that said two hands did not pre¬ 
tend to be accurate or to have any positive knowledge 
upon the subject; that none of the parties engaged in 
said examination used or had any measure, rule, stick, or 
any instrument whatever for measuring said casks ; that 
each cask was not separately examined or judged, and 
that the examination was simply an inspection with the 
eyes and guesswork throughout; that the statements so 
made by said two hands were taken by said agent to 
said Kryzanowski, and upon said statements the said 
Kryzanowski figured up the whole number of barrels of 
lagerbeer on hand, and made up his report. And de¬ 
ponent further says, that the true quantity of lagerbeer 
in the cellars on that day was 3,168 barrels, as specified 
in the affidavit of Michael Kuntz, Jacob Ahles, and 
August Schulz, hereto annexed, and that in addition 
thereto, there were 38J barrels on hand drawn off into 
kegs, making altogether 3,206J barrels. 


ADOLPH GLASER. 


Sworn to before me, this 19th day 


UCLUIO me, LIllO 

of July, 1867, 


John A. Osborn, 

U. S. Commissioner . 


27 


Southern District of New York, ss : 

George Sichler and Jacob Crschler, of the City of 
New York, being severally duly sworn according to law, 
depose and say, each for himself, that he is the person 
referred to in the foregoing affidavit of Adolph Glaser 
as having assisted in the examination of the lagerbeer 
on hand on the 9th day of July, 1867, that he helped to 
make said examination, and that the facts set forth in 
said Adolph Glaser’s affidavit as to the manner in which 
said examination was conducted, are strictly true ; that 
deponent had no knowledge of the number of casks or 
the capacity of each cask, and that he had to guess in 
all matters, and did not pretend to be in any way 
accurate. 

GEORGE SICHLER, 
JACOB ORSCHLER. 

Sworn to before me, this 19th day ) 
of July, 1867, ) 

John A. Osborn, 

U. S. Commissioner. 


DISTRICT COURT 

OF THE UNITED STATES OF AMERICA, FOR THE 
SOUTHERN DISTRICT OF NEW YORK. 


The United States / 
against 

A Quantity of Lagerbeer and cer¬ 
tain Apparatus, Ac., Ac., at No. 
229 East 38th-STREET, New York 
City. 


Southern District of New York, ss : 

Michael Kuntz, of No. 77 and 79 Essex-street, in 
the City of New York, by occupation a brewer, and 






28 


Jacob Allies, of No. 155 East 54th-street, in said city ? 
by occupation a brewer, and August Schulz, of West 53rd. 
street, near 10th Avenue, in said city, by occupation a 
cooper, being duly sworn, according to law, depose 
and say, each for himself, that on the 13th day of July? 
1867, at the brewery of Alton Hupfel, and in the 
presence of each other, they took an account of the lager- 
beer stored in the vaults belonging to said brewery, and 
that then and there they found the following quantities 
of lagerbeer on hand, to-wit: 


NUMBER OF CASKS. 

3 

5 

4 
7 

14 

18 

7 

14 

6 

12 

1 

9 

1 

13 

2 

1 

7 

1 

15 
2 
1 
2 
2 
1 
1 

11 

1 

11 


CAPACITY OF EACH CASK. 


10 barrels. 

14 

u 

8 

(( 

14 

it 

12 

it 

12 

ti 

15 

u 

14 

n 

13 

ti 

12 

ll 

15 

ll 

26 

It 

15 

u 

26 

a 

18 

u 

18 

u 

26 

it 

15 

it 

26 

u 

18 

u 

14 

u 

12 

a 

8 

a 

6 

a 

18 

it 

26 

a 

18 

u 

26 

ti 


TOTAL NUMBER OF BBLS. 

30 
70 
32 
98 
168 
216 
105 
196 
’ 78 

• 144 

15 

234 

15 

338 

36 

18 

182 

15 
390 

36 

14 

24 

16 

6 

# 18 
286 

18 

286 


/ 


29 


NUMBER OF CASKS. 

CAPACITY OF EACH CASK. 

TOTAL NUMBER OF BBLS. 

2 

18 barrels. 

36 

3 

12 

36 

2 

6 

12 


Barrels—3,168. 

Total number three thousand one hundred and sixty- 
eight barrels ; that deponents, thereupon, then and there 
to-wit, on said 13th day of July 1867, signed a written 
statement to the same effect; and deponents further say 
that they are well acquainted with the practice of 
measuring casks of the description herein before referred 
to, and that the account taken by them is correct in 
every particular. 

JACOB AHLES, 
AUGUST SCHULZ, 
MICHAEL KUNTZ. 


Sworn to before me, this 18th 1 
day of July, 1867, J 

John A. Osborn, 

United States Commissioner. 


Schedule B. 

Office Inspector Internal Rev. ) 
10th Dist. N. Y., Sing Sing, j 

A. Hyatt, Esq., 

Assessor 10 th Dist. N. Y. 

I have the honor to submit the following report of my 
investigation of the breweries in this District, and to 
transmit statements of deficiencies, which have been as¬ 
certained from the best information that I could obtain. 

I found very few of the brewers keeping such books 
as are required by law, especially the “ Material ” Book j 




30 


but through the Assistant Assessors they have now 
been supplied with the books, and I have notified them 
that they will be held strictly accountable for any neg¬ 
lect hereafter to comply with the requirements of the 
law. 

Without definite knowledge as to exact quantities 
sold by them without payment of tax, I have yet found 
evidence of delinquency, sometimes by admission of the 
parties themselves ; and after advising with your able 
assistant, (Mr. Henry,) I have concluded to recommend 
the assessment of the accompanying deficiencies, which, 
according to our best judgment are considerably within 
the mark, in every case. There has been, and still is, a 
manifest indifference on the part of these taxpayers to 
the requirements of the law, aud I am of the opinion 
that the assessment of these deficiencies, will have a 
wholesome effect upon them all. 

I find as follows : 


Gottlieb Schott, 

deficiency 

400 

bbls. @ $1 00, 

$400 tax. 

Henry Zeltner, 

U 

100 

tt 

tt 

100 “ 

Anton Hupfel, 

U 

300 

tt 

tt 

300 “ 

Kirchhoff & Co., 

u 

300 

it 

tt 

300 “ 

J. Diehl, Jr., 

u 

400 

tt 

tt 

400 “ 

Geo. Bruckner, 

u 

300 

it 

tt 

300 “ 

Anna B. Kolb, 


100 

tt 

tt 

o 

o 

1—I 

John Eichler, 

u 

150 

« 

tt 

150 “ 


Bbls. 2050. 


$2050. 


Most of those brewers retail upon their own premises, 
and these deficiencies have mainly occurred in that 
way. 

I have the honor to be, 

Very respectfully yours, 

R. H. WILBUR, 

Revenue Inspector , 10 th and 1 1th District, N. Y. 





31 


CERTIFICATE. 


The foregoing Memorial, with Schedules attached, 
having been referred to the Executive Committee of 
The Brewers’ Association op the United States, up¬ 
on due examination, the same has been fully approved, 
and the said Executive Committee joins in the Peti¬ 
tion therein contanied. 

By order of The Executive Committee of the 
United States Brewers’ Association. 


HENRY CLAUSEN, Jr., President . 
RICHARD KATZENMEYER, Secretary . 
FREDERICK SCHAEFER, Treasurer . 



























































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